Southern Reporter Volume 6 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1890 Excerpt: ...in such cases, nor the courts without power for the correction of such evils, and we think the judge below should at once have granted an order to have the obstructions removed by the sheriff." See, also, Pierce v. City of New Orleans, 18 La. Ann. 242; Dudley v. Tilton, 14 La. Ann. 286. The later case of Black v. Tow-Boat Co., 31 La. Ann. 497, reviewed McDonogh's Case, above cited, and, as we understand the decision, approved and con Armed it, as an exception to the general rule expounded in the body of the opinion that the writ of injunction in the mandatory form cannot be issued on nn ex parte application, but only after hearing. The exception is thus stated in the language of the opinion: "When a prohibitory writ has issued, restraining a party from obstructing the exercise of a right, the obstruction may be commanded to be removed because its continuance effects the very injurv he was prohibited from effecting." In the instant case it was the clear duty of the judge to grant the prohibitory injunction prayed for; and the consequent duty to order the removal of the obstruction arose simultaneously. We will not say that the judge, having first granted the prohibitory injunction prayed for, might not have ordered the defendant to show cause why the mandatory order of removal should not be granted, but under such showing the inquiry would not have been as to the legal rights of the parties, but simply as to the fact whether or not the levee did obstruct the drainage. As, however, there is no question raised as to the fact of obstruction, and as the order of removal only contemplates a removal of the levee as such an obstruction, there seems to be no occasion for modifying the mandamus as prayed for. It is therefore ordered and decreed that th...